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5. That Nagi Reddy and his sons lived joint does not appear to be a disputed fact. But it does not follow therefore that the asset in question belonged to the joint family at the time when it was advanced by Nagi Reddy. No such presumption can be raised in law. Nor is that proved in point of fact on the material on record. Even so, perhaps, non-joiner of the other heirs would not have assumed so much importance had the old Mitaksshara Law held the filed and Nagi Reddy who died intestate had left only hiss sons as his heirs. But the position now is different Nagi Reddy, as already noticed, had left behind him his widow and two married daughters besides his sons. The married daughters, according to Mitakshara Law could not be his in the presence of the sons even in relation to self-acquired properties. The case of the widow by reason of the advent of Act XVIII of 1937, as amended by Act XI of 1938, is somewhat different in that she acquires an equal share with her sons in the self-acquired property of her husband, he having died intestate. Even in coparcenary property she would step into the shoes of her husband and would be entitled to the same share as her husband would have had without disrupting the joint family status But in either case the interest that would devolve on her would be a limited estate. The Hindu Succession Act (AC XXX of 1956) came into force on June 17, 1956. It mad further inroads on Mitakshara Law maily in the matter of succession by introducing basic radical changes in the law of succession to the property of a Hindu dying intestate and incidentally in certain other connected matters. In has infact set down infirm comprehensive system of inheritance applicable to all schools of though. It has provided for, in Sections 8 to 13, a set of general rules in this behalf and also rules for ascertainment of shares and portion of each sharer. Separate general rules relating tot he succession to the property of a female Hindu dying intestate have been provided in Sections 15 and 16. The changes made in these line are of far-reaching consequence. The property possessed by a female Hindu either acquired before or after the commencement of the said Act is under this law her absolute property as provided in Section 14. with full power of disposition thereof. whether by acts inter-vivios or testamentary. Indeed the Widow's limited estate has been rules of succession bearing on the joint family and adoption etc. have been introduced by the Act. Of these, Section 6. which we propose to deal with at some length in the latter part of this judgment, is concerned with devotion, of interest in coparcenary property. According to the substantive clause in that section. if a copartner dies intestate, his interest shall ordinarily devolve upon the surving members of the coparcenary by rule of survivorship without disrupting the joint family status. So far, there is no departure for the old Mitakshara Law. But the proviso to Section 6 has made all the difference where a coparcencer dies leaving a female relative specified in class I of the Schedule or a make relation specified in that class who claims through such female relative. The interest of the deceased in the corparcenary property then shall devolve under the Act and not by the rule if survivorship. Ordinarily the share of a copartner in the coparcenary property becomes determined only on partition. But for the purpose of this section and in order to further the cause of the proviso. the explanation has introduced a legal fiction. According to it, the interest of a deceased Hindu Mitakshara copartner shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death irrespective of whether he was entitled to claim partion or not. It is the change effected by the proviso that seems to be of vital importance for purposes of these cases if the asset in question be held to be a joint family asset in the hands of the deceased. We are no less concerned with the change of law under Hindu Succession Act of 1956 in relation to the nature of father's self-acquired property in the hands of a number of his sons on its devolution on them on his death by rule of succession. Whereas according to the Mitakshara Law they would have would have held it as joint tenants, under Section 19(b) of the Hindu Succession Act they hold it as tenants in common and not as said property will not be joint family property in their hands is a is their sons as it would have been if the Mitakshara Law prevailed.

23. Mr. Ayyapa Reddy. counsel for the appellants then referred us to several cases wherein it was held that a Kartha of a joint Hindu family can calmly represent all the members of the family and the suits filed by or against him will not fail merely because the other members of the family were not impleaded in the suits and even if the members were to be parties to the suits. the suits will not be dismissed merely because the said parties were brought on record after the time had run as they were not necessary parties but in the circumstances only proper parties who may be brought on record to avoid any scope for multiplicity of suits or to ensure that all defenses are raised and adjudicated upon completely. The principles enunciated. having regard to the provisions of the Mitakshara Law are unexceptionable. But this aspect of the matter can come up for pour consideration only if we hold that the right to the mortgage security has accrued to the plaintiffs alone as joint tenants and not as tenant-common. We have already noticed that the mortgage amount was not proved to be joint family asset in the hands of Poltapati Nagi Reddy. It follows that the right thereto did not devolve on his sons by survivorship, but only by succession. Of course, even so if the old Mitakshara Law had still held to filed, the asset in their hands vis-a-vis their sons would have been joint family asset. We have death with this aspect in the earlier part of this judgment. We have held that as a result of the advent of the Hindu Succession Act, the succession in relation to the asset will be governed by Section 19 of that Act and the asset will be held by them as tenants in common. But even assuming that the asset was coparcenary property (in as much as the first appellate Court in its judgment has posed the question on that assumption). in the circumstances of these cases, the plaintiffs will hold the said asset as joint tenants or coparceners.

The sections divided into two distinct parts according to its contents and effect. One of these parts is expressly in the form of a proviso. Two explanations are added to the section, by introducing a legal fiction and the other excluding an already separated copartner or his her is from claiming any share in the interest of the deceased coparcener to which he would otherwise have been entitled inter the terms of the proviso.

27. The section is concerned with Mitakshara coparcenary property. The coparacenary property, as already noticed. is no other than the joint family property in which according to Mitakshara law a coparcener gets eight by birth. It is distinct from separate property which devolves by rule of succession. Mainly and essentially it is apartibandhadya or unobstructed heritage which is not recognised by the Daya Bagha law. The later knows of only obstructed heritage in which the right accures not by birth but on the death of the last owner without leaving make issue. Every coparacener has joint interest and joint possession., The ownership of coparcenary property vests in the entire body of coparceners. The peculiar feature of the coparcenary is that no individual member so long as the joint family remains undivided can predicate that he has a precise or definite share in the property for his undivided interest in the joint property is liable to fluctuate with the births and deaths in the family. His interest in enlarged with the death of a male member and diminishes with the birth of such member. The undivided interest of the deceased coparcener devolves on the surviving coparceners on his death by ruloe of survivorship which is distinct from rule of succession. It is only on partition that a copartner becomes entitled to a definite share. Thus, the characterstic features of parcenary property are that it vests in each copartner on this birth and devolves on the surviving coparcener by survivorship on the death of coparcerner and the definite shares of each of the coparcenrs therein become specified only on partition. It is no according to Mitkahsara Law.

28. What then is the impact of Section 6 of the Hindu Succession Act on this legal position?

29. Section 6 of the Hindu Succession Act, as already stated, is divided into two parts and each part has inserting appointed province. The first part reclines the operation of Mitakshara Law in relation to devolution of interest of a deceased coparcener on all the surviving coparceners by rule of survivorship even though his death might have taken place after the commencement of the Hindu Succession Act. In fact it, in express terms. prohibits the operation of Act 30 of 1956 to such cases. But this prohibition as is obvious from the language of the proviso which is of vital importance is not unqualified. In fact that section read as a whole would show that the rule in the first part is absolute only in cases not falling within the ambit of the proviso. So then, if a case is attracted by the proviso, the rule in part one will not be applicable at all. The proviso infact is categorical that in cases covered by that part the interest of the deceased in a Mitakshara coparceneray property shall not devolve by survivorship but only in accordance with the relevant provisions of the Hindu Succession Act in relation to testamentary or intestate succession . as to case may warrant.Thus while determining whether the rule of survivorship will apply to a given case. it must be seen whether the facts of that facts of that case fall squarely within the ambit of the proviso in that section. If they come within it, it is that part and not the first part that will be applicable to the devolution of interest of the coparcener in the Mitakshara copacenary property. The first part is thus applicable only to cases outside the pale of the second part which satisfy the conditions of the first part. A reading of the section further makes it abundantly clear that both the parts put together provide for the entire gamut of law contemplated by the Act on the question of devolution of interest of a deceased coarser in the Mikakshara coparcenary property on his death. If the deceased to left only copacrcners the rule of survivorship will apply. But if the has left any female relatives specified in class I of the schedule viz., daughter, widow, mother, daughter of a pre-deceased son. widow of a pre-deceased son. daughter of a pre-deceased son of a pre-deceased son or widow of a pre-deceased son of pre-deceased son, or even a male relative claiming thorough females specified in that schedule such as son of a pre-deceased daughter. the devolution will be only under Act 30 of 1956 and not in accordance with the law of survivorship. All the heirs of deceased, whether coparcerns or otherwise, will then get their due share only under the Act. If the deceased coparcener had died insets to his interest would devolve by intestate succession upon the persons who are amongst the 12 preferential heirs specified in class I of the schedule. They will in heir that interest simultaneously as provided by Section 9 of the Act and more than one heir succeeding together shall take the interest ass tenants-in-common and not as joint tenants. Explanation 2. however denies the benefit of the proviso to a person who had separated himself from the coparcenary effort the death of the deceased and also to this heirs. His right will be ignored as though he was totally disinherited. Explanation 1 introduces out of necessity a legal fiction for ascertainemnt of interest of the deceased copartner. His interest according to it will be deemed to be the share that would have been allotted to him if there was a partion immediately before he died irrespective of the fact where he could claim such partion or not on that day. The need for the legal fiction arose out impelling necessity for according to Mitakshara Law so long as there is no partion no coparancer can predicate that he has got a definite share in the coparcenary property. The legal fiction was designed for a limited purpose viz., for computation of the interest of the deceased coparcerner for purposes of devolution of the same on his her is so that there may be no difficult in giving effect to the proviso. The explanation thus is connoted mainly and essentially with the proviso. The term "interest" no doubts is used even n the first part to the section. But the explanation is of no practical importance in realation there-to for there can be no occasion for separation or ascertainment of this interest if the case fell exclusively within the first part of the section. In fact in that event both the proviso and the explanation would be governed by the rule of survivorship and not by the provisions of the Hindu Succession Act.